Date Last Updated: June 1, 2016
Consumer Acquisition, LLC, a California, USA limited liability corporation ("Consumer Acquisition"
) provides the Consumer Acquisition Subscription Services ("Subscription Services"
means Consumer Acquisition's hosted, online software application and such other products and services as Consumer Acquisition may designate from time-to-time and any optional third party services ordered by You and provided to You through Consumer Acquisition in connection with the Subscription Services.) through our website accessible at https://adrules.consumeracquisition.com/
). This Agreement between Consumer Acquisition and you governs Your access to the use of the Subscription Services and constitutes a binding legal agreement between You and Consumer Acquisition ("Agreement"
defined as the content of this Agreement)( "Order Form"
means a Consumer Acquisition Subscription Services order form that specifies the Fees, configuration, subscription period and other details of the Subscription Services to be provided by Consumer Acquisition). "You"
as used in this Agreement shall refer and apply to any agent of a company or agent of some other legal entity seeking to enter into this Agreement with Consumer Acquisition.
1. OBLIGATIONS OF CONSUMER ACQUISITION
1.1 Subscription Services.
(A) Subject to the terms of this Agreement, Consumer Acquisition will make the Subscription Services available to You during the Term of the Agreement and any renewal Term ("Term"
defined as the subscription period specified in the applicable Order Form(s)). The parties agree that Consumer Acquisition may make the Subscription Services available to certain of Your Affiliates ("Affiliate"
defined as an entity that, directly or indirectly, through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or control with, a party; as used in this definition, the term "control" means the ownership of at least 50% of the equity of that entity or possessing the power to direct or cause the direction of the management of that entity), provided that each such Affiliate enters into an Order Form with Consumer Acquisition which will include billing information for such Affiliate, and that such Affiliate will be bound by the terms and conditions of this Agreement.
(B) You agree to the terms of this Agreement and represent and warrant that You shall only allow Authorized Users to use the Service ("Authorized User"
defined as Your employees, consultants, contractors, customers or agents that (i) have been assigned a unique username-password combination to access and use the Subscription Services, (ii) have registered on-line to access and use the Subscription Services, (iii) agree to comply with this Agreement and (iv) are at least 18 years old). Any access to, or use of the Subscription Services by anyone under 18 years old is expressly prohibited.
1.2 Data Security and Storage.
Consumer Acquisition shall maintain appropriate security practices to store the Subscriber Data ("Subscriber Data"
means proprietary data (that does not include personally identifiable information) and information input or authorized to be input by You or by any Authorized Users into, and stored by, the Subscription Services). In the event of any loss or corruption of Subscriber Data, Consumer Acquisition shall use its commercially reasonable efforts to restore the lost or corrupted Subscriber Data from the latest backup of such Subscriber Data maintained by Consumer Acquisition. Consumer Acquisition shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Subscriber Data caused by any third party not under the direction or control of Consumer Acquisition. CONSUMER ACQUISITION'S EFFORTS TO RESTORE LOST OR CORRUPTED SUBSCRIBER DATA PURSUANT TO THIS SECTION 1.3
SHALL CONSTITUTE CONSUMER ACQUISITION'S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF SUBSCRIBER DATA. Consumer Acquisition reserves the right to establish or modify its general practices relating to storage of Subscriber Data.
2. YOUR OBLIGATIONS
2.1 Marketing Support.
During the Term, You grant Consumer Acquisition the right to (a) publish Your corporate logo on its website and in marketing materials that include examples of Consumer Acquisition customers and (b) publicly acknowledge You as a Consumer Acquisition customer in a press release, the content of which, Consumer Acquisition and You shall mutually approve in advance. In addition, if You and Consumer Acquisition mutually agree, You will participate in a Consumer Acquisition customer case study, provided that Consumer Acquisition covers the costs of Your participation.
You are responsible for Your and Your Authorized Users' use of the Subscription Services. You shall promptly notify Consumer Acquisition of any suspected or alleged violation of the Agreement including any unauthorized use of any password or account or any other known or suspected breach of security. Consumer Acquisition may suspend or terminate any Authorized User's access to the Subscription Services upon notice to You in the event that Consumer Acquisition reasonably determines that such Authorized User has violated the Agreement.
2.3 Telecommunications and Internet Services.
You acknowledge and agree that the use of the Subscription Services by You and by any Authorized Users is dependent upon access to telecommunications and Internet services, which You must acquire and maintain at Your own cost and expense, including, without limitation, any and all fees and taxes of any kind related to the foregoing. Consumer Acquisition shall not be responsible or liable for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
2.4 Third Party Interactions.
During Your use of the Subscription Services, You or Your Authorized Users may maintain accounts with Publishers ("Publisher(s)"
means one or more third parties, who provide You and/or Your Authorized Users with advertising services that may be accessed through the Subscription Services) that may be accessed via the Subscription Services. Any such advertising services shall be subject to the terms and conditions of Your arrangements with such Publishers, and Consumer Acquisition hereby disclaims any and all responsibilities and liabilities related thereto.
If You accept or agree to this Agreement on behalf of a company or other legal entity by executing an Order Form referencing this Agreement, You represent and warrant that You have the authority to bind such company or other legal entity to this Agreement.
2.6 Restrictions on Use of the Services.
(A) You shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. You shall not: (i) copy, modify, distribute, resell or rent any portion of the Subscription Services; (iii) disassemble, decompile or reverse engineer the Subscription Services or allow any third party to do so, except to the extent such restrictions are prohibited by law; or (iv) transfer any of Your rights hereunder to any third party, except in connection with a permitted assignment of the Agreement.
(B) Notwithstanding the foregoing, You may make the Subscription Services available to Your customers in conjunction with the provision of advertising services to such customers, as part of Your ordinary business activity, provided that the use by Your customers of the Subscription Services shall be subject to all of the restrictions under the Agreement, including, but not limited to, the restrictions under this Section 2.7
(C) You shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, and You shall not attempt to gain unauthorized access to the Subscription Services or its related systems or networks. You shall not use the Subscription Services to knowingly transmit any unsolicited commercial communications in violation of applicable laws, or to send or store via the Subscription Services (i) materials or information which may violate intellectual property rights or other proprietary rights of third parties, or which have been unlawfully obtained or (ii) materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles for the Subscription Services.
(D) If you use the Subscription Services to communicate about or administer a promotion (such as a contest or sweepstakes), you are responsible for the lawful operation of that promotion, including the official rules, offer terms and eligibility requirements (e.g., age and residency restrictions), and compliance with regulations governing the promotion and all prizes offered in connection with the promotion (e.g., registration and obtaining necessary regulatory approvals). Please note that compliance with these guidelines does not constitute the lawfulness of a promotion. Promotions are subject to many regulations and if you are not certain that your promotion complies with applicable law, please consult with an expert.
- Promotions must include the following:
- A complete release of Consumer Acquisition by each entrant or participant.
- Acknowledgment that the promotion is in no way sponsored, endorsed or administered by, or associated with, Consumer Acquisition.
- Disclosure that the participant is providing information to [disclose recipient(s) of information] and not to Consumer Acquisition.
- You must not condition registration or entry upon the user taking any action using any Consumer Acquisition features or functionality other than connecting to your app or web site.
- You must not use Consumer Acquisition features or functionality as a promotion's registration or entry mechanism. For example, you cannot use a feature of Subscription Services to automatically register or enter a promotion participant.
- By "administration" we mean the operation of any element of the promotion, such as collecting entries, conducting a drawing, judging entries, or notifying winners.
- By "communication" we mean promoting, advertising or referencing a promotion in any way via the Subscription Services on websites or otherwise.
We reserve the right to reject or remove Pages for any reason. These terms are subject to change at any time.
(A) In consideration for Consumer Acquisition providing the Subscription Services, You shall pay to Consumer Acquisition all the applicable Fees ("Fees"
means the subscription fees and other charges specified in the applicable Order Form(s)), as provided for in the Order Form, including any third party API costs (i.e., Publisher API costs) that may be billed to Consumer Acquisition by Your Publishers in the course of providing the Subscription Services to You. All Fees shall commence on the first day of the Term as specified in the Order Form. Consumer Acquisition will either invoice You for the monthly minimum Fees or the Fees calculated from the percent of spend rate if media activity is Linked to ("Linked to"
means the media activity is viewable in the Subscription Services) the Subscription Services. Monthly minimum Fees will be due if You make no use of the Subscription Services during a particular month or if Your use of the Subscription Services does not meet the usage minimum specified in the Order Form.
(B) If You incur third party API costs through your use of the Subscription Services and such API costs are billed to Consumer Acquisition by the Publishers or API providers as a result, Consumer Acquisition will invoice You all such API costs at no additional mark up and You agree to pay Consumer Acquisition for such API costs.
(C) You agree to provide Consumer Acquisition with complete and accurate billing and contact information in the Order Form.
(D) At the end of each month, Consumer Acquisition will automatically issue an invoice to You or bill Your credit card for the Subscription Services. Consumer Acquisition in its sole discretion reserves the right (i) to bill You in advance for the minimum monthly Fees as specified in the Order Form and to bill You at the end of each month for any Fees in excess of the minimum Fee or (ii) to provide You with a single invoice at the end of each month for all Fees. Each invoice is due and payable 30 days following the invoice date (subject to credit approval). If You believe in good faith that Your invoice is incorrect, You must contact Consumer Acquisition in writing within 10 days of the invoice date and describe (in reasonable detail) the amount of the disputed charges and the reason for Your good faith disagreement. If Consumer Acquisition has not received payment of invoiced amounts within 10 days after the due date, interest shall accrue on the past due amounts at the rate of one and 1.5% per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Consumer Acquisition. You shall reimburse Consumer Acquisition for the reasonable costs of collection, including reasonable fees and expenses of attorneys. If Your account is 15 days or more overdue, in addition to any of its other rights or remedies, Consumer Acquisition reserves the right to suspend the Subscription Services provided to You, without liability to You, until such amounts are paid in full.
(E) Consumer Acquisition shall not be responsible for any fees Your financial institution may impose upon You in the payment of Your invoice (including without limitation any transfer fees).
(F) Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, "Taxes"
). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Consumer Acquisition's net income. All pricing terms other than those publicly disclosed on Consumer Acquisition's website are confidential, and You agree not to disclose them to any third party.
4.1 Definition and Exclusions.
By virtue of the Agreement, the parties may have access to each other's Confidential Information ("Confidential Information"
defined as any written, machine-reproducible and/or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within 30 days after disclosure). Consumer Acquisition Confidential Information includes, without limitation, the Subscription Services and any software used for the provision of the Subscription Services, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on Consumer Acquisition's website, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services. Subscriber Data is deemed Your Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party's lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
4.2 Use and Nondisclosure.
During the Term and for a period of three years after expiration or termination of the Agreement, neither party shall make the other's Confidential Information available to any third party or use the other's Confidential Information for any purposes other than exercising its rights and performing its obligations under the Agreement. You understand and agree that Consumer Acquisition will disclose the Subscriber Data to Publishers for the purpose of providing the Subscription Services to You. Each party shall take all reasonable steps to ensure that the other's Confidential Information is not disclosed or distributed by its employees or agents in violation of the Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other's Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency's request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency's authority to receive such Confidential Information. Furthermore, You acknowledge and agree that, upon expiration or termination of the Agreement, Consumer Acquisition shall either destroy or deliver Subscriber Data back to You pursuant to Section 7.3
, and shall have no other obligation to You regarding such Subscriber Data under the Agreement.
5. PROPRIETARY RIGHTS
(A)Subject to the limited rights expressly granted to You hereunder, Consumer Acquisition and its' licensors exclusively own and retain all rights, title and interest in and to the Subscription Services (including all copies of any software used for the provision of the Subscription Services), including all Intellectual Property Rights ("Intellectual Property Rights"
defined as patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, with respect to Consumer Acquisition, data generated by or otherwise derived from Your use of Subscription Services and any other intellectual property rights recognized in any country or jurisdiction in the world) therein or relating thereto. All rights not expressly granted to You are reserved by Consumer Acquisition.
(B) You hereby grant to Consumer Acquisition a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, modify and incorporate Your Feedback ("Feedback"
defined as comments, and suggestions for improvements relating to the Subscription Services provided by You to Consumer Acquisition) into the Subscription Services and to further market, distribute and sell the Subscription Services with Your Feedback incorporated therein.
6. WARRANTY AND LIMITATION OF LIABILITY
6.1 Warranty for Subscription Services.
Consumer Acquisition warrants that (i) the Subscription Services shall perform materially in accordance with the description of the Subscription Services in Consumer Acquisition's Online Help website, which may be updated from time to time by Consumer Acquisition, and (ii) the Subscription Services will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SUBSCRIPTION SERVICES AND ANY OTHER PRODUCTS OR SERVICES RELATED THERETO ARE PROVIDED "AS IS" AND AS AVAILABLE WITHOUT ANY WARRANTY, IMPLIED OR OTHERWISE, EXCEPT AS STATED IN SECTION 6.1 ABOVE. YOU HEREBY UNDERSTAND AND ACKNOWLEDGE THAT THE SUBSCRIPTION SERVICES MAY UTILIZE OR INTERACT WITH SYSTEMS AND TECHNOLOGIES OF FACEBOOK OR OTHER PLATFORMS THAT ARE IN BETA OR TEST MODE AND THAT SOME PORTION OF THE SUBSCRPTION SERVICES MAY BE IN BETA OR TEST MODE, AND YOU ACCEPT THAT SUCH PORTIONS OR PROGRAMS ARE PROVIDED ON AN "AS IS" AND "WHEN AVAILABLE" BASIS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SUBJECT MATTER OF THE AGREEMENT OR THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, CONSUMER ACQUISITION DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. CONSUMER ACQUISITION FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CONSUMER ACQUISITION FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CONSUMER ACQUISITION OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
IN NO EVENT SHALL EITHER PARTY OR ITS MEMBERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, ATTORNEYS, LICENSORS, OR LICENSEES BE LIABLE TO OTHER PARTY FOR ANY INDIRECT OR DIRECT LOST PROFITS, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, EVEN IF ADVISED OF THE PROSPECT OF SUCH DAMAGES. EXCEPT FOR EACH PARTY'S OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY), AND SECTION 8 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY OR TO THE PARTY UNDER THIS AGREEMENT – AND SPEFICALLY NO LIABILITY SHALL BE DETERMINED OR CALCULATED BASED ON THE SUCCESS OR LACK OF SUCCESS OF ANY CAMPAIGN OR ADVERTISING PROGRAM BY YOUR USE OF THE SUBSCRIPTION SERVICES OR THE LOSS OF SALES OR UPTIME DUE TO CHANGE OF API'S BY SOCIAL NETWORKS SUCH AS FACEBOOK, INSTAGRAM, PINTEREST OR THE LIKE. A PARTIES' ABILITY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT MAY BE DEPENDENT ON THE OTHER PARTY FULFILLING ITS OBLIGATIONS. NO PARTY SHALL NOT BE LIABLE FOR ANY COSTS, CHARGES OR LOSSES SUSTAINED BY THE OTHER PARTY ARISING DIRECTLY FROM ANY FAILURE OF THE NON-PERFORMING PARTY TO FULFILL ITS OBLIGATIONS UNDER THIS AGREEMENT.
7. TERM AND TERMINATION
The Agreement shall commence on the Effective Date ("Effective Date"
defined as the date the initial Order Form is signed by You and Consumer Acquisition) and shall remain in effect so long as the current or any subsequent Order Form for the Subscription Services that references this Agreement is in effect.
7.2 Termination for Cause.
Either party may terminate the Agreement upon written notice (i) if the other party materially breaches the Agreement and fails to correct the breach within 10 days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be 5 business days, (ii) if there is an adjudication of bankruptcy of any party under any bankruptcy or insolvency law, or (iii) if a receiver for business or property of the other property is appointed or the other party makes any general assignment for the benefit of its creditors. In addition, Consumer Acquisition may terminate an account for which Consumer Acquisition is not charging You a fee at any time in its sole discretion.
7.3 Rights and Obligations Upon Expiration or Termination.
(A) Upon expiration or termination of the Agreement, Your and Your Authorized Users right to access and use the Subscription Services shall immediately terminate, You and Your Authorized Users shall immediately cease all use of the Subscription Services, and You shall return to Consumer Acquisition and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to Consumer Acquisition.
(B) Consumer Acquisition may destroy or otherwise dispose of any Subscriber Data in its possession unless Consumer Acquisition receives, no later than 30 days after the expiration or termination date of the Agreement, a written request to deliver to You the then-most recent back-up of the Subscriber Data. Consumer Acquisition shall make commercially reasonable efforts to deliver such back-up copy to You within 30 days of receipt of such request. If requested by Consumer Acquisition, You shall pay all reasonable expenses incurred by Consumer Acquisition in returning Subscriber Data to You. You agree and acknowledge that Consumer Acquisition has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, after 30 days from the expiration or termination date.
(C) Notwithstanding the foregoing, if the Agreement is terminated as a result of Your breach, Consumer Acquisition shall have no obligation to deliver any copy of the Subscriber Data to You, and may delete such Subscriber Data at any time.
(D) Upon expiration or termination of the Agreement, Consumer Acquisition shall cease use of Your corporate logo within 180 days; provided, however, that (i) Consumer Acquisition shall have a reasonable time to remove Your corporate logo from Consumer Acquisition's website as well as from any promotional materials, (ii) Consumer Acquisition shall be entitled to distribute all of the promotional materials printed during the Term that include Your corporate logo, and (iii) Consumer Acquisition shall not be required to remove any such printed materials from circulation.
Section 3 shall survive any expiration or termination of the Agreement for so long as either of the parties has any rights, duties or obligations thereunder. Sections 1.2, 4, 5, 6.2, 7.3, 7.4, 8, 9, 10 and 11 shall survive any expiration or termination of the Agreement.
Each party (an "Indemnifying Party"
) will indemnify, defend and otherwise hold harmless the other party (the "Indemnified Party"
), its officers, directors, employees, agents and subsidiaries from and against any claim or suit brought by a third party against the Indemnified Party relating to, or resulting from, the Indemnifying Party's breach or alleged breach of the Agreement, violation a third party's Intellectual Property Rights, or any of the Indemnifying Party's representations and warranties hereunder. The Indemnified Party will promptly notify the Indemnifying Party of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the Indemnified Party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require the Indemnified Party's written consent (to be granted or withheld at the Indemnified Party's sole discretion) and the Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
9. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY'S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION, A BREACH OF SECTION 1.2
, OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS RELATING TO INFRINGEMENT OF SUCH THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND (B) NOTWITHSTANDING ANY OTHER PROVISIONS OF THE AGREEMENT, IN NO EVENT SHALL CONSUMER ACQUISITION'S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
10. DMCA and Copyright Take Down Policy
Consumer Acquisition respects the intellectual property of others, and we ask our users to do the same. Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"). Consumer Acquisition may disable and/or terminate the accounts of users in accordance with this policy.
If you believe that your work has been copied in a manner that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, you can request that we take down the infringing material by filing a DMCA Notice with Consumer Acquisition. If your material has been removed as a result of a DMCA Notice, you may file a Counter-Notice requesting that the material be restored. Please note that we do not make any legal decisions about the validity of your claims.
Anyone making a false or fraudulent Notice or Counter-Notice may be liable for damages under the DMCA, including costs and attorney's fees. If you are unsure of whether certain material infringes your copyright, contact an attorney.
. This means we may publish or share them with third parties at our discretion, and we may produce them pursuant to a legal discovery request.
Filing A DMCA Notice
To file a DMCA Notice with Consumer Acquisition, you must send us a written letter by fax, regular mail, or email. When we receive a clear and valid Notice pursuant to the guidelines set forth below, we will respond by either taking down the allegedly infringing material or blocking access to it. We may contact the Notice provider to request additional information. We reserve the right to ignore a Notice that is not in compliance with the DMCA.
Your Notice must include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, in the case of multiple copyrighted works, a representative list of such works.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Consumer Acquisition to locate the material.
- Information reasonably sufficient to permit Consumer Acquisition to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- The following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
Filing A DMCA Counter-Notice
If your material has been removed or blocked by us as a result of a DMCA Notice, you may send us a Counter-Notice asking for the allegedly infringing material to be restored.
When we receive the Counter-Notice, we will send a copy of the Counter-Notice to the party who originally requested the removal of the allegedly infringing material and we will reinstate the allegedly infringing material, unless that party obtains a court order supporting its removal. We reserve the right to ignore a Counter-Notice that is not in compliance with the DMCA.
Your Counter-Notice must include the following:
- A list and description of all material(s) that were removed by Consumer Acquisition and the location at which the material(s) appeared before it/they was/were removed.
- Your name, address, telephone number and email address (if available).
- A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located (or San Francisco, California if your address is outside of the United States);
- A statement that you will accept service of process from the person (or an agent of such person) who provided the DMCA Notice to us.
- The following statement: "I swear under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
- Your Signature.
DMCA Notices and Counter-Notices should be sent to Consumer Acquisition's Agent for Notice of Claims of Copyright or Other Intellectual Property Infringement as follows:
Consumer Acquisition – DMCA Notice
725 Barleta Court
Livermore, CA 94550
Consumer Acquisition's Agent may also be reached by phone at (818) 679-4269.
11.1 Governing Law.
The Agreement and all matters arising out of or relating to the Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions; provided that the Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California. If You are outside of the United States, the parties agree that rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any legal action or proceeding relating to the Agreement shall be brought exclusively in the courts located San Francisco, California. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
The waiver by either party of any default or breach of the Agreement shall be in writing and shall not constitute a waiver of any other or subsequent default or breach.
In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
11.4 Force Majeure.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a "Force Majeure Event"
). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.5 Compliance with Laws.
Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
11.6 Relationship Between the Parties.
Nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent.
Neither party may assign the Agreement without prior written consent of the other party unless in connection with a merger, acquisition, or sale of all or substantially all of Consumer Acquisition's or Your assets, and provided that the surviving entity has agreed to be bound by the Agreement. Notwithstanding the foregoing, Consumer Acquisition may assign the Agreement to any of its Affiliates without Your prior consent.
11.8 Entire Agreement.
This Agreement together with each Order Form, which is hereby incorporated by reference, and any exhibits hereto constitutes the complete and exclusive agreement between You and Consumer Acquisition concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of the Agreement. Any modification or amendment of any provision of the Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. In the event of any inconsistency between the applicable Order Form and this Agreement (or its exhibits), this Agreement (or its exhibits) shall control, unless the Order Form expressly states that such term supersedes the conflicting term of this Agreement.
11.9 Equitable Relief.
You acknowledge that a breach by either party of any confidentiality or proprietary rights provision of the Agreement may cause that party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, either party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
11.10 No Third-Party Beneficiaries.
The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to the Agreement may enforce it.
11.11 Certain Conflicts.
, the Agreement shall prevail. In the event of a conflict between the Agreement and the Order Form, the Order Form shall prevail. The Agreement and the Order Form governs Your access to the use of the Subscription Services and constitutes a binding legal agreement between You and Consumer Acquisition.
The Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.
11.13 Social Network Billing Credentials.
The Platform will be linked to one or more of Client's Facebook Business Manager advertising accounts or other social network platform accounts as described in a Campaign Description, and will manage ad operations within these accounts. Prior to the start of a campaign, Client shall establish billing credentials with Facebook or the applicable social network and Client will be billed directly by Facebook or applicable social network for the impression expense generated through the Platform separately from the licensing fees or service fees payable to Consumer Acquisition. Client agrees to timely pay the applicable social network for such expenses.
Consumer Acquisition may give notice to You by e-mail to Your e-mail address on record in Consumer Acquisition's account information. You may give notice to Consumer Acquisition by sending an email to firstname.lastname@example.org
11.15 Nonsolicitation of Employees.
For the term of this Agreement and for one (1) year subsequent to its termination, neither party nor its affiliates will hire or solicit for hire any employee or consultant of the other party. Nothing herein shall preclude generalized searches by either party for employees through the use of advertisement in the media (including on job or message boards) that are not specifically directed at the employees of the other or the hiring of any such persons as a result of any such advertisement.
The headings in this Agreement are for the convenience of reference only and have no legal effect.